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Horton v. Shinn

United States District Court, D. Arizona

November 22, 2019

Tony Lee Horton, Petitioner,
v.
David Shinn, et al., Respondents.

          REPORT AND RECOMMENDATION

          Honorable Eileen S. Willett United States Magistrate Judge

         TO THE HONORABLE NEIL V. WAKE, SENIOR UNITED STATES DISTRICT JUDGE:

         Pending before the Court is Tony Lee Horton's (“Petitioner”) “Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus” (the “Petition”) (Doc. 1). Respondents have filed their Answer (Doc. 11), and Petitioner has filed a Reply (Doc. 16) and a “Supplement Authority of Legal Innocence, Miscarriage of Justice” (Doc. 15). For the reasons explained herein, it is recommended that the Court dismiss Grounds One, Two, Three, 4(c), and 4(d) as procedurally defaulted and deny Grounds 4(a) and 4(b) on the merits. The undersigned further recommends that the Court deny Petitioner's request for an evidentiary hearing.

         I. BACKGROUND

         On November 7, 2013, a Maricopa County Grand Jury indicted Petitioner on one count of aggravated assault, a class 3 dangerous felony. (Doc. 1 at 23-24). On April 3, 2014, the State filed a supervening indictment charging Petitioner with two counts of aggravated assault, class 3 dangerous felonies, and one count of disorderly conduct, a class 1 misdemeanor. (Id. at 28-29). The first aggravated assault count alleged that on or about September 22, 2013, Petitioner “using a knife, a deadly weapon or dangerous instrument, intentionally, knowingly or recklessly caused a physical injury to [R.C.]” in violation of Arizona law. (Id.) (emphasis omitted). The second aggravated assault count alleged that on or about September 22, 2013, Petitioner “intentionally, knowingly or recklessly caused a serious physical injury to [R.C.]” in violation of Arizona law. (Id. at 29).

         Following trial, a jury found Petitioner guilty as charged. (Doc. 12 at 6). The trial court sentenced Petitioner to concurrent fifteen-year prison terms on the aggravated assault counts and to thirty-nine days in jail for the disorderly conduct count. (Id.).

         As summarized by the Arizona Court of Appeals, the facts underlying Petitioner's convictions are as follows:

On September 22, 2013, shortly after R.C.'s family returned home from church, the family went outside to conduct footraces between R.C.'s seventeen-year-old son and a friend. The races were conducted on the street in front of [Petitioner's] house.
¶6 At the same time, [Petitioner] was inside preparing dinner with a small paring knife, when he heard a “commotion” outside. Because [Petitioner's] wife was ill, he went outside and asked R.C.'s family to hold the races somewhere other than the street in front of his house. R.C. responded, “Man, you know, basically we're not doing anything. The kids are out here just having fun. We're running. You know we're not doing anything.” [Petitioner] announced he was going back inside his house, and R.C. replied, “You gotta do what you gotta do, man.” [Petitioner] then returned to his home.
¶7 Shortly thereafter, the two teenagers ran another race on the street in front of [Petitioner's] house. When [Petitioner] realized R.C.'s family had not immediately left the area, [Petitioner] exited his home with the paring knife still in his right hand and walked toward R.C., who at the same time moved toward [Petitioner].
¶8 A neighbor's surveillance video introduced as evidence at trial indicates that, as the two men confronted one another on the curb between [Petitioner's] property and the street, R.C. punched [Petitioner], and [Petitioner] immediately slashed at R.C. with the knife. A brief altercation ensued, with R.C. continuing to throw punches and [Petitioner] swinging the knife at R.C. several times, cutting R.C.'s head, ear, hand, and chin. The final swing of the paring knife resulted in the knife blade breaking off in R.C.'s face before falling to the ground.
¶9 [Petitioner] retreated toward his garage, and R.C. ran to his home and retrieved a handgun. Brandishing the gun, R.C. went outside to his driveway, where he could see [Petitioner] in his garage across the street, and [Petitioner] could see him. R.C. pointed the gun at [Petitioner], but eventually went back inside, and both R.C.'s wife and [Petitioner] called 911 to report the incident. R.C. and [Petitioner] were separately treated at local hospitals, and [Petitioner] was later arrested.

(Doc. 12 at 5-6) (footnotes omitted).

         After Petitioner's appointed counsel could not find a colorable claim to raise on appeal, Petitioner filed a pro se brief. (Id. at 37-68). On May 3, 2016, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Id. at 3-14). The Arizona Court of Appeals denied Petitioner's “Motion to Reconsider.” (Id. at 79-80). The Arizona Supreme Court denied Petitioner's request for further review. (Id. at 85). On October 1, 2018, the United States Supreme Court denied Petitioner's Petition for Writ of Certiorari. (Id. at 87).

         On October 22, 2015, Petitioner filed a Notice of Post-Conviction Relief (“PCR”). (Doc. 12-10 at 2). The trial court appointed counsel, who could not find a colorable issue to raise. (Doc. 13 at 3-4). On January 3, 2017, Petitioner filed a pro se PCR Petition. (Id. at 10-12). On July 13, 2017, the trial court dismissed the PCR proceeding. (Id. at 56-58). Petitioner sought further review by the Arizona Court of Appeals, which granted review, but denied relief. (Id. at 72-73). The Arizona Supreme Court denied Petitioner's Petition for Review. (Doc. 14 at 6).

         On February 11, 2019, Petitioner timely initiated this federal habeas proceeding. (Doc. 1). As detailed in the Court's April 3, 2019 Screening Order, the Petition presents the following four grounds for habeas relief:

In Ground One, Petitioner alleges invidious discrimination by the prosecutor and trial court in violation of his First, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendment rights. In Ground Two, Petitioner alleges a violation of the right not to be subjected to double jeopardy in violation of the Fifth, Ninth, and Fourteenth Amendments. In Ground Three, he alleges that his sentence was unconstitutionally enhanced. In Ground Four, Petitioner alleges that he received ineffective assistance of counsel in violation of his Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendment rights.

(Doc. 7 at 2). Respondents have identified and separately addressed a number of sub-claims contained in Ground Four, which Respondents have labeled as Grounds 4(a)-(d). (Doc. 11 at 2). This Report and Recommendation addresses all of those sub-claims.

         Section II of this Report and Recommendation pertains to Grounds One, Two, Three, 4(c), and 4(d). In Section II(B), the undersigned finds that Grounds One, Two, Three, 4(c), and 4(d) are unexhausted because Petitioner did not fairly present them in his state court proceedings. The undersigned further finds in Section II(C) that all of the unexhausted claims are procedurally defaulted because Petitioner would be precluded by the Arizona Rules of Criminal Procedure from returning to state court in an attempt to exhaust them. Section II(D) explains that the procedural defaults should not be excused under the cause and prejudice and miscarriage of justice exceptions.

         In Section III, the undersigned reviews the ineffective assistance of counsel claims presented in Grounds 4(a) and 4(b) and explains why they are without merit. Finally, Section IV explains the undersigned's recommendation that the Court deny Petitioner's request for an evidentiary hearing.

         II. GROUNDS ONE, TWO, THREE, 4(c), AND 4(d) ARE PROCEDURALLY DEFAULTED

         A. Legal Standards Regarding Procedurally Defaulted Habeas Claims

         1. Exhaustion-of-State-Remedies Doctrine

         It is well-settled that a “state prisoner must normally exhaust available state remedies before a writ of habeas corpus can be granted by the federal courts.” Duckworth v. Serrano, 454 U.S. 1, 3 (1981); see also Picard v. Connor, 404 U.S. 270, 275 (1971) (“It has been settled since Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), that a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus.”). The rationale for the doctrine relates to the policy of federal-state comity. Picard, 404 U.S. at 275 (1971). The comity policy is designed to give a state the initial opportunity to review and correct alleged federal rights violations of its state prisoners. Id. In the U.S. Supreme Court's words, “it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation.” Darr v. Burford, 339 U.S. 200, 204 (1950); see also Reed v. Ross, 468 U.S. 1, 11 (1984) (“[W]e have long recognized that in some circumstances considerations of comity and concerns for the orderly administration of criminal justice require a federal court to forgo the exercise of its habeas corpus power.”) (citations and internal quotation marks omitted).

         The exhaustion doctrine is codified at 28 U.S.C. § 2254. That statute provides that a habeas petition may not be granted unless the petitioner has (i) “exhausted” the available state court remedies; (ii) shown that there is an “absence of available State corrective process”; or (iii) shown that “circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1).

         Case law has clarified that in order to “exhaust” state court remedies, a petitioner's federal claims must have been “fully and fairly presented” in state court. Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014). To “fully and fairly present” a federal claim, a petitioner must present both (i) the operative facts and (ii) the federal legal theory on which his or her claim is based. This test turns on whether a petitioner “explicitly alerted” a state court that he or she was making a federal constitutional claim. Galvan v. Alaska Department of Corrections, 397 F.3d 1198, 1204-05 (9th Cir. 2005). “It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (citation omitted); see also Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), as modified by 247 F.3d 904 (9th Cir. 2001) (federal basis of a claim must be “explicit either by citing federal law or the decisions of federal courts, even if the federal basis is self-evident or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds”).

         2. Procedural Default Doctrine

         If a claim was presented in state court, and the court expressly invoked a state procedural rule in denying relief, then the claim is procedurally defaulted in a federal habeas proceeding. See, e.g., Zichko v. Idaho, 247 F.3d 1015, 1021 (9th Cir. 2001). Even if a claim was not presented in state court, a claim may be procedurally defaulted in a federal habeas proceeding if the claim would now be barred in state court under the state's procedural rules. See, e.g., Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002).

         Similar to the rationale of the exhaustion doctrine, the procedural default doctrine is rooted in the general principle that federal courts will not disturb state court judgments based on adequate and independent state grounds. Dretke v. Haley, 541 U.S. 386, 392 (2004). A habeas petitioner who has failed to meet the state's procedural requirements for presenting his or her federal claims has deprived the state courts of an opportunity to address those claims in the first instance. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991).

         As alluded to above, a procedural default determination requires a finding that the relevant state procedural rule is an adequate and independent rule. See id. at 729-30. An adequate and independent state rule is clear, consistently applied, and well-established at the time of a petitioner's purported default. Greenway v. Schriro, 653 F.3d 790, 797-98 (9th Cir. 2011); see also Calderon v. U.S. Dist. Court (Hayes), 103 F.3d 72, 74-75 (9th Cir. 1996). An independent state rule cannot be interwoven with federal law. See Ake v. Oklahoma, 470 U.S. 68, 75 (1985). The ultimate burden of proving the adequacy of a state procedural bar is on the state. Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003). If the state meets its burden, a petitioner may overcome a procedural default by proving one of two exceptions.

         In the first exception, the petitioner must show cause for the default and actual prejudice as a result of the alleged violation of federal law. Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014). To demonstrate “cause, ” a petitioner must show that some objective factor external to the petitioner impeded his or her efforts to comply with the state's procedural rules. See Murray v. Carrier, 477 U.S. 478, 488 (1986); Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004). To demonstrate “prejudice, ” the petitioner must show that the alleged constitutional violation “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982); see also Carrier, 477 ...


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